(1) This section applies if, on the hearing of an application for a division 3
order, the court is satisfied the prisoner is a
serious danger to the community in the absence of a division 3 order (a
"serious danger to the community" ).
(2) A prisoner is a
serious danger to the community as mentioned in subsection (1) if there is an
unacceptable risk that the prisoner will commit a serious sexual offence—
(a) if the prisoner is released from custody; or
(b) if the prisoner is
released from custody without a supervision order being made.
(3) On hearing
the application, the court may decide that it is satisfied as required under
subsection (1) only if it is satisfied—
(a) by acceptable, cogent evidence;
and
(b) to a high degree of probability;
that the evidence is of sufficient
weight to justify the decision.
(4) In deciding whether a prisoner is a
serious danger to the community as mentioned in subsection (1) , the court
must have regard to the following—
(a) the reports prepared by the psychiatrists under section 11and the
extent to which the prisoner cooperated in the examinations by the
psychiatrists;
(b) any other medical, psychiatric, psychological or other
assessment relating to the prisoner;
(c) information indicating whether or
not there is a propensity on the part of the prisoner to commit serious sexual
offences in the future;
(d) whether or not there is any pattern of offending
behaviour on the part of the prisoner;
(e) efforts by the prisoner to address
the cause or causes of the prisoner’s offending behaviour, including whether
the prisoner participated in rehabilitation programs;
(f) whether or not the
prisoner’s participation in rehabilitation programs has had a positive
effect on the prisoner;
(g) the prisoner’s antecedents and criminal
history;
(h) the risk that the prisoner will commit another serious sexual
offence if released into the community;
(i) the need to protect members of
the community from that risk;
(j) any other relevant matter.
(5) If the
court is satisfied as required under subsection (1) , the court may order—
(a) that the prisoner be detained in custody for an indefinite term for
control, care or treatment (
"continuing detention order" ); or
(b) that the prisoner be released from
custody subject to the requirements it considers appropriate that are stated
in the order (
"supervision order" ).
(6) In deciding whether to make an order under
subsection (5) (a) or (b) —
(a) the paramount consideration is to be the
need to ensure adequate protection of the community; and
(b) the court must
consider whether—
(i) adequate protection of the community can be reasonably
and practicably managed by a supervision order; and
(ii) requirements under
section 16can be reasonably and practicably managed by corrective services
officers.
(7) The Attorney-General has the onus of proving that a prisoner is
a serious danger to the community as mentioned in subsection (1) .
